Determining the meaning of "direct evidence" in discrimination cases within the 11th Circuit: why Judge Tjoflat was (W)right.

• Author: Barton, R. Joseph

Truly I tell you, no prophet is accepted in the prophet's hometown. (1)

An employment discrimination plaintiff may establish a case of discrimination by using one of three alternative methods: 1) presenting evidence of discriminatory intent; 2) meeting the four-pronged test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); or 3) through statistical proof of a pattern and practice of discrimination. 2 These three methods are frequently described using the following respective shorthand labels: 1) "direct evidence" or more accurately "a mixed-motives case"; 2) "circumstantial evidence" or the presumption method; or 3) "statistical evidence."' This article focuses only on the type of evidence sufficient to establish a mixed-motives case. There is no question that an unlawful employment practice is established when an illegitimate criterion "was a motivating factor for any employment practice, even though other factors also motivated the practice." (4) The crucial unresolved question has been what evidence sufficed to establish that an illegitimate criterion was "a motivating factor."

The crux of the conflict concerns the type of evidence which a plaintiff can use to establish a mixed-motives case. One standard permits a plaintiff to rely on any type of evidence--direct or circumstantial; the other standard restricts a plaintiff to using only direct evidence to establish a mixed-motives case. This conflict originates from the failure of a majority of the justices of the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), to agree on what evidence would establish a mixed-motives case. Additionally, the indiscriminate description of a mixed-motives case as a "direct evidence" case by Justice O'Connor's concurrence in Price Waterhouse led some lower courts to conclude that only evidence meeting the dictionary definition of direct evidence would suffice in a mixed-motives case. Last term in Desert Palace v. Costa, 123 S. Ct. 2148, 2150 (2003), the Supreme Court finally addressed this issue in Title VII cases and unanimously concluded that "direct evidence was not required" in order for a plaintiff "to obtain a mixed-motive instruction."

The Supreme Court's recent Costa opinion, however, did not finally resolve all the issues concerning the level of evidence sufficient to warrant a mixed-motives instruction. The Costa opinion focused exclusively on the language of the 1991 amendments to Title VII, which were passed in response to Price Waterhouse, to reach the conclusion that a mixed-motives case may be proven by direct and/or circumstantial evidence. As a result, the holding Costa opinion is limited to cases under Title VII and arguably does not apply other discrimination statutes, such as the Age Discrimination in Employment Act (ADEA), the Pregnancy Discrimination Act (PDA), or even the retaliation provisions of Title VII, which were not similarly amended after Price Waterhouse.

Moreover, the brief opinion in Costa provides little guidance as to what evidence will suffice to constitute a mixed-motives case.

Yet, the unresolved issues were addressed four years ago, by 11th Circuit Judge Tjoflat in Wright u. Southland Corporation. 187 F.3d 1287 (11th Cir. 1999). In that opinion--in which the other judges only concurred in the judgment or result, thereby depriving the opinion of any precedential value--Judge Tjoflat not only rejected the "dictionary definition of direct evidence," but also set forth a three-prong "preponderance standard" for evaluating whether the evidence warranted a mixed-motives instruction. While the 11th Circuit ignored this discussion in Wright and district courts in the 11th Circuit rejected Wright's "direct evidence" analysis as mere dicta, the standard for evaluating mixed-motives cases has remained mired in ambiguity and inconsistency.

In light of the issues left unresolved by the Costa decision, this article suggests that an examination of Judge Tjoflat's analysis is warranted. First, this article outlines the scope of the Costa decision and identifies the issues left unresolved by Costa. Next, this article examines Judge Tjoflat's analysis in reaching the three-prong standard, and, finally, this article explains that this three-prong standard should be adopted by the 11th Circuit in all mixed-motives discrimination cases because it is the only permissible method of evaluating a mixed-motives case consistent with Supreme Court guidance, 11th Circuit precedent and logic.

The Supreme Court Opinion in Desert Palace v, Costa

In Costa, the Supreme Court addressed "whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction" under Title VII. (5) While recognizing that this conflict arose out of the disagreement in Price Waterhouse, the Costa court resolved this question by focusing nearly exclusively on the language of Title VII's 1991 amendments, which were explicitly amended to provide that "an unlawful employment practice is established when [a plaintiff] demonstrates that [an illegitimate criterion] was a factor even though other factors also motivated the practice." (6) Relying on Title VII's express definition of the term "demonstrates" as "to meet the burden of production and persuasion," the Costa court concluded that Congress did not intend to require a heightened showing to obtain a mixed-motives instruction under Title VII. (7) Based on this language, the Supreme Court concluded that Title VII did not depart from the conventional rule of civil litigation allowing a plaintiff to prove a case "using 'direct or circumstantial evidence.'" (8)

While this reasoning might suggest application to any of the discrimination statutes, unlike Title VII (or the ADA, which expressly adopts the procedures set forth in Title VII), (9) other statutes, such as the ADEA still contains the same "because of language as the pre-1991 Title VII statute." This language suggests then that the holding of Price Waterhouse might still apply to non-Title VII statutes." Indeed, Justice O'Connor's concurrence in Costa explicitly states that the decision was based solely on the 1991 Amendments codification of "a new evidentiary rule for mixed-motive cases arising under Title VII." (12) Thus, a question remains as to whether direct evidence is required in non-Title VII mixed-motives cases. Additionally, the Supreme Court explicitly declined to address or provide any guidance as to the amount of evidence required to establish a mixed-motives case. (13) As counsel for defendant in Costa commented after issuance of the opinion, "the lower courts are going to have to grapple with the definition of what is or isn't a mixed-motive case." (14) Accordingly, a question also remains as to what constitutes sufficient evidence in a mixed-motives case.

As of the writing of this article, no published decision in the 11th Circuit had cited Costa nor decided a mixed-motives case after Costa. Recent cases from other circuits suggest that the lower courts are not readily applying the reasoning of Costa to non-Title VII cases, such as the ADEA or the PDA. (15) Indeed, the 11th Circuit has held that the relevant sections of the 1991 amendments did not apply to mixed-motive retaliation claims under the ADEA or Title VII. (16) Additionally, even in Title VII cases, courts outside this circuit have continued to explain that evidence is analyzed under the presumption method when only circumstantial evidence is available, thus suggesting courts' reticence in abandoning the "direct evidence" requirement for mixed-motive cases. (17) Accordingly, these unresolved issues suggest that a thorough and thoughtful consideration of the Judge Tjoflat's analysis in Wright is warranted.

Analysis of "Direct Evidence"

In conducting the analysis in Wright, Judge Tjoflat first summarized the basic principles of employment law, namely that every employment decision involves discrimination, but only those impermissible bases, such as race, sex, and age, are prohibited by law. (18) From that premise, Judge Tjoflat posited that the essential question in an employment discrimination case, then, is "what caused the adverse employment decision about which plaintiff complains?" or "Did an impermissible basis cause the employer to make the decision about which the plaintiff complains?" (19)

As Judge Tjoflat explained, answering that question requires the plaintiff to prove the state of mind of the person making the employment decision. (20) Unlike some torts, intent may not be inferred merely from performing the forbidden act; rather, an employment discrimination plaintiff must undertake the difficult task of proving the motivation of the act." Recognizing the difficulty of proving intent, Judge Tjoflat explained that the Supreme Court developed an alternative method of proof in McDonnell Douglas by which an employee could establish discrimination even in the absence of evidence establishing a mixed-motives case. This alternative method affords a plaintiff with a presumption that the employer has discriminated if a plaintiff establishes certain predicate facts. (22) This "presumption" permits a factfinder to infer intentional discrimination by the employer based on the establishment of a prima facie case. (23) In short, a jury may conclude the existence of intentional discrimination in the absence of a contrary explanation by the employer. (24)

Of course, a plaintiff need not rely on the McDonnell Douglas presumption method if there is sufficient evidence establishing intentional discrimination--i.e., a mixed-motives case. (25) Usage of the colloquialism "direct evidence" had led 11th Circuit panels and district courts to equate the mixed-motives method with direct evidence and to equate circumstantial evidence with the presumption method. Judge Tjoflat suggested that such equivalency erroneously...